LSWY v. SKYM

FCMC 6895 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 6895 OF 2011

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J U D G M E N T
(Relocation)

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Introduction

1. I refer to the petitioner mother as “M” and the respondent father as “F” respectively.

2. This is the trial of F’s summons filed on 10 November 2014 for the care and control of the child of the family (hereinafter called “C”) and leave for her permanent removal to Singapore.

Background

3. M, now aged 45, was born and grew up here.  She joined the Hong Kong Police Force in 1990 and is now a Chief Inspector of Police.  Her extended family lives here.  F, now aged 46, was born and grew up in Singapore.  He left Singapore to pursue his tertiary education in the UK, and came here in 1997 after he had been qualified as a solicitor in England. C, now aged 10 and ten months, is studying in an international school (hereinafter called “SIS”) in Hong Kong.

4. The parties were married in Hong Kong in December 1998.  C was born on 31 January 2005.  Unhappy differences have since arisen between the parties, and they separated in April 2010. On 10 January 2011, the parties signed a Deed of Separation setting out the arrangements with respect to C and the financial relief between the parties upon the dissolution of the marriage.  On 27 May 2011, M filed a petition for divorce on the 1 year separation ground.  On 1 November 2011, the Court granted a Decree Nisi in respect of the petition and made an order on the same date recording the custody arrangements in respect of C and the maintenance arrangements that were previously agreed between the parties under the Deed of Separation.  The Court granted the Decree Absolute on 23 December 2011.  By the order made on 1 November 2011, the parties have joint custody with care and control of C to M and reasonable access to F.  From May 2011 to August 2012, C lived with M with F enjoying regular access. 

5. From July 2012 to June 2013, M was posted to become a Police Community Relation Officer (“hereinafter called “PCRO”).  The usual office hours for the PCRO post was between 8:30 am to 6:36 pm, but she was often required to attend functions after office hours, on weekends and public holidays.  In June 2012, she enrolled in a part-time Masters course.  In August 2012, when C was 7 years old, M asked F if C could live with him.  F’s evidence is that he was surprised by this and he told M at that time if this was what M wanted, it was not just going to be a short-lived arrangement but a permanent one.  M disagreed with him and insisted that at that time both parties understood that this arrangement was merely temporary.  In August 2012, C moved to live with F, and M’s domestic helper (hereinafter called “DH”) also moved to F’s home to continue her care for C.  It is accepted by the parties that M remained involved in C’s life after she moved to live with F, despite that there is a dispute between the parties as to the extent of her involvement. 

6. In June 2013, M’s PCRO post ended and she was transferred to become a District Operations Officer (hereinafter called “DOO”).  The DOO post means that she was directly responsible to the Deputy District Commander for narcotics, gambling, vice and traffic matters within the District.  She was also responsible for planning, organizing and coordinating major crowd management operations and public order events.  Her working hours were from 8:30 am to 6:36 pm, but very often she was required to work after office hours, during weekends and public holidays.  Her DOO post only lasted twelve months.  In June 2014, she was able to switch to a long-term administrative position as an Assistant Divisional Commander.  The working hours of the post are from 8 am to 5:36 pm from Monday to Friday, and her role is mainly supportive.  M alleged that by September 2014, in light of the post and that her Master course was coming to an end, she had planned to bring C back to live with her.  F disputed her allegation in this regard.

7. On 19 September 2014, F sent her a Whatsapp to request for a chat.  She asked him what it was about and further told him she would be busy since she had to submit her dissertation the next morning, so she suggested lunch.  The following morning, on 20 September 2014, after she had submitted her dissertation, she further suggested meeting F over dinner instead.  The parties disputed over M’s allegation that she suggested dinner as she was minded to discuss arranging C to return to live with her.  At the dinner, F suddenly announced the news that he intended to re-marry, move back to Singapore and bring C with him.  It is accepted by the parties that M was shocked by the news. 

8. M visited C on 22 and 23 September 2014, during which C told her that F had discussed his plan of relocation with her before the meeting between the parties on 20 September 2014 took place.  On 24 September 2014, M made an unannounced visit to F’s home in the morning.  After having sent C to school on that morning, she went back to his home and told F that she was bringing C back to live with her.  On the same day, she picked C up from school.  The action taken by M was seen by F as a tactical move that was prompted by his recent announcement, thereby putting litigation tactics above C’s interests, and she clearly did it as she was focused solely on getting control of C as opposed to acting in C’s best interests.

9. When M took C away from F’s home she also brought DH so that the latter would continue caring for C.  Since C returned to live with M on 24 September 2014, F continued having reasonable access.  On 10 November 2014, F took out the present application after M had refused to return C to his care.

10. In November 2014, F re-married his childhood friend (hereinafter called “D”), who is also a divorcee and has a daughter, now aged 11, from her prior marriage.  In May 2015, he relocated to Singapore, and he continued working for the same law firm in Singapore.

11. On 18 June 2015, an unsuccessful Child Dispute Resolution hearing took place.

12. After her contract with M expired in June 2015, DH signed a new contract with F and she went to Singapore to work for his family in July 2015.

Evidence

13. A lot of evidence was adduced. Both parties filed voluminous affidavit/ affirmation evidence sworn/ affirmed by the parties and the witnesses.

i. 1^st Affidavit of F filed on 10 November 2014 in support of his summons of the same date [P1/6]

ii. 2^nd Affidavit of F filed on 29 December 2014 [P1/58]

iii. Affidavit of the paternal grandmother (hereinafter called “PGM”) filed on 29 December 2014 [P1/237]

iv. Affidavit of D dated 29 December 2014 and filed on 5 January 2015 [P1/293]

v.  1^st Affirmation of M filed on 30 December 2014 [P1/257] (in response to F’s 1^st Affidavit)

vi. 2^nd Affirmation of M filed on 17 February 2015 [P1/322] (in response to F’s 2^nd Affidavit)

vii. 3^rd Affidavit of F filed on 12 March 2015 [P2/428]

viii. Affidavit of M’s sister (hereinafter called “S”) filed on 12 March 2015 [P2/423]

ix. 4^th Affidavit of F filed on 30 March 2015 [P2/465]

x. 5^th Affidavit of F filed on 24 August 2014 [P2/535]

xi. Affidavit of DH dated 18 November 2014 and filed on 26 August 2015 [P2/556]

xii. 2^nd Affidavit of DH dated 24 August 2015 and filed on 26 August 2015 [P2/564]

xiii. 3^rd Affirmation of M filed on 31 August 2015 [P2/581]

xiv. Affidavit of M’s married boyfriend (hereinafter called “P”) filed on 31 August 2015 [P2/612]

14. The parties, D, PGM, DH and S all testified in Court.  The Court also heard evidence from Mr Cheung Tak-mong, Social Work Officer (hereinafter called “SWO”), who prepared the Social Investigation Report dated 16 January 2015 and the Updated Report dated 4 June 2015 (hereinafter respectively called the “1^st SIR ^” and “2^nd SIR”).

No International Social Welfare Report

15. The 1^st call over hearing of the summons dated 10 November 2014 was held on 17 November 2014, during which it was directed that the International Social Welfare Report be called for.  The case was referred to the Family and Child Protection and Welfare Service Branch/ Rehabilitation and Protection Group Branch (hereinafter called “RPG”), Ministry of Social and Family Development in Singapore through the Adoption Programme/ Cross-boundary and Intercountry Casework Service of the International Social Service Hong Kong Branch (hereinafter called “HKISS”) on 2 December 2014.  However, by an email sent to HKISS on 9 January 2015, the RPG requested HKISS to seek the Family Court’s acceptance to a list of preconditions for the preparation of the International Social Welfare Report, which said preconditions include:-

(a)   Their officers shall not be cross-examined in Court under any circumstances, nor shall they be obliged to answer any queries or give any clarifications, after furnishing the report, whether to the court, to the Hong Kong Social Welfare Department, HKISS or the parties/their lawyers; and

(b)   If they request that the whole part of the report is not be released to the parties or their lawyers, such request is to be honoured by the Hong Kong Court, HKISS, the Hong Kong Social Welfare Department, and the parties/their lawyers. 

16. The parties’ view on the matter was sought through their legal representatives.  They felt that the preconditions of RPG are not acceptable and eventually agreed to dispense with the International Social Welfare Report.  By consent, the International Social Welfare Report was dispensed with.

Father’s reasons for relocation

17. He said that having lived in Hong Kong for 17 years, his decision to relocate to Singapore was not one which he made lightly and it was a decision that he reached only after carefully considering and weighing all of the relevant facts including :

i The implications for him personally from a work perspective.

ii. The child’s wishes and feelings.

iii The effect of on C and her relationship with M.

iv. The comparative living arrangements that he could provide for C and his new family in Singapore and Hong Kong and the overall environment in each city in the upbringing of a young family.

v. The possibility of D and her daughter relocating from Singapore to Hong Kong;

The implications for him personally from a work perspective

18. F is the litigation partner in a leading global law firm with offices in Singapore.  He will therefore remain as a partner with the same law firm and he will work from the Singapore office following his relocation.  From a work perspective, there will accordingly not be any material adverse changes resulting from his relocation to Singapore.  From a financial perspective, this means that he will also be able to continue providing for C’s education and maintenance. 

The child’s wishes and feelings

19. Since C started living with him in 2012, they had made regular trips to Singapore.  Before then, when the parties were married, they would also bring C to Singapore at least once a year since she was 4 years old.  C is close to PGM and her other extended family members including aunts, uncles and cousins living in Singapore.  This led F to believe that C would adapt to and enjoy living in Singapore.  He asked C whether she would be happy to live with M if he relocated to Singapore and her answer was unequivocal, saying that she wanted to move to Singapore to live with him.

The effect on C and her relationship with M

20. He would promote M’s involvement in C’s life and would ensure that she will maintain regular and frequent contacts with C, and he would ensure that C will continue to have a close relationship with her mother via holiday access and daily/weekly video chat if she lives in Singapore.

The comparative living arrangements that he could provide for C

21. One of the many benefits that would flow from his remarriage was the fact that C would have a sibling and would grow up in a family unit if she were able to live in Singapore.  C was extremely excited and happy that she would have a sister to grow up with, and since they have been introduced to each other, they have got on extremely well.  As a result of their trip to Sapporo over the Christmas holidays i.e. from 19 to 28 December 2014, C and her stepsister have become even closer and C has also developed a close bond with D.  Although D and F would continue working, they can now support each other in ensuring that they devote maximum time towards their children in their upbringing.  Plainly, bringing up young children as a couple is much easier than doing so as a single parent.  Moreover, as a senior banker in the wealth management business, D enjoys a high degree of autonomy and flexibility in her working hours.  In addition, they have the help of DH in looking after the children when they are both at work. 

22. Having re-married, F has since purchased a 5,000 sq. feet garden house in a nice neighbourhood in Singapore, which will give C a more spacious and comfortable living environment compared to what he or M can provide in Hong Kong.  C loves the outdoors and F believes that she would enjoy the outdoor activities that Singapore can offer. Regarding healthcare, C will continue to be covered by his firm’s private healthcare insurance scheme.  The family home is close to the Singapore Methodist Girls’ School (hereinafter called “MGS”), a top girls school where C’s stepsister goes.  C would have priority of enrolment at MGS by virtue of D being an alumni and also because she would have a sibling studying there. From a financial perspective, since she would be entitled to apply for Singapore citizenship through him, her costs of education would be lower compared to Hong Kong.  Also, he has the support of his paternal family and they will readily be able to care for C should the need arises.

The possibility of D and her daughter relocating from Singapore to Hong Kong

23. D and F have discussed the possibility of her moving to Hong Kong together with her daughter.  After having carefully considered and compared the living standards and environment between Hong Kong and Singapore, F felt that it would be in C’s best interests in terms of her well being and development to relocate to Singapore.

Mother’s oppositions

24. The main reasons for her opposition are that :

i.  She has always been C’s primary carer since her birth.

ii.   The parties recognised that upon their divorce, she should have care and control of C and that is reflected in the Consent Order dated 1 November 2011.

iii.   The care arrangement she made for C to live with F was temporary, and reflected their co-operation while her job and the Masters course required her to work or study long hours or on weekends.

iv.   During the time that C lived with F, she saw her virtually every day.

v.   There is no longer any need for the previous temporary living arrangements, given that she has resumed normal working hours which will continue in her new position.

vi.   She was very concerned about C’s welfare in that F has announced to her his unilateral plan to bring C to Singapore, without first informing her let alone discussing the matter with her.

vii.  Further, he raised this with C even before she had met or got to know her stepmother and stepsister.

viii.  F has decided to relocate in haste, only after a romantic relationship of approximately one month.

ix.   F and D have shown little empathy or sensitivity towards C’s needs and the situation at hand.

x.   Given the short period of time that D has dated F or been in contact with C, great caution should be exercised when assessing the impact of a third party on a 10 year old child.

xi.   C is doing well at school in Hong Kong and there is no justification for her to change school.

xii.  F has ample work flexibility and financial ability to arrange continuing access.

xiii.  C is only aged 11 and she should remain with her in Hong Kong instead of in Singapore with F and a stepmother that hardly knows her.

xix. This is not an appropriate time or stage of life for C to be uprooted from her school, her relatives i.e. her extended family, her friends and peers in Hong Kong.

xx.  There is simply no good reason to remove C from her well established life in Hong Kong and take her away from her custody and care.

Applicable Legal Principles

25. The parties have no dispute on the applicable legal principles.  In deciding any questions relating to the custody or upbringing of minor children Section 3 of the Guardianship of Minors Ordinance, Cap 13, (hereinafter called “GMO”) makes general provision for the Court to have regard to the welfare of the child as the first and paramount consideration.

“General Principles

(1) In relation to the custody or upbringing of a minor, and in relation to the administration of any property belonging to or held in trust for a minor or the application of the income of any such property-

(a) in any proceedings before any court (whether or not a court as defined in section 2) the court-

(i) shall regard the best interests of the minor as the first and paramount consideration and in having such regard shall give due consideration to-

(A) the views of the minor if, having regard to the age and understanding of the minor and to the circumstances of the case, it is practicable to do so; and

(B) any material information including any report of the Director of Social Welfare available to the court at the hearing; and

(ii) shall not take into consideration whether, from any other point of view, the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father;

(b) …, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal and be exercisable by either without the other.

26. The Court of Appeal in Hong Kong has applied the guidance laid down in SMM v TWM (Child: Relocation) [2010] 4 HKLRD 37 as follows:

“ 19. The parties agreed that the applicable principles governing relocation applications are based on the Payne v Payne [2001] Fam 473 line of cases…

…

21. The principles in Payne v Payne can be summarized as follows:

a. “The distinct features of a relocation application are: first the applicant is almost invariably the mother and the primary carer; second, generally, the motivation for the move arises out of her remarriage or her urge to return home; and third, the father’s opposition is commonly founded on a resultant reduction in contact and influence. (per Thorpe LJ at para. 27)

b. The two propositions that have been consistently applied by the courts are: first, the welfare of the child is the paramount consideration; and second, refusing the primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. Therefore, her application to relocate will be granted unless the court concludes that it is incompatible with the welfare of the children. (per Thorpe LJ at para. 26)

c.  The application should be approached as follows:

i.  Is the mother’s application genuine in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life?”, then ask, “is the mother’s application realistic?”, by which I mean founded on practical proposals, both well researched and investigated.  If the application fails either of these tests, refusal will inevitably follow.

ii.   If, however, the application passes these tests, then there must be a careful appraisal of the father’s opposition, “is it motivated by a genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?”, “What would be the extent of the detriment to him and his future relationship with the child were the application granted?”, “To what extent would that be offset by extension of the child’s relationships with the maternal family and homeland?”.

iii.  What would be the impact on the mother, either as the single parent or as a new wife, of a refusal of her realistic proposal?

iv.  The outcome of the second and third appraisals must then be brought into an overriding review of the child’s welfare as the paramount consideration directed by the statutory checklist insofar as appropriate.  (per Thorpe LJ at para. 40)”

In short, the relevant factors are:

i   The welfare of the child is always paramount.

ii  There is no presumption created by s.13(1)(b) of the English Children Act 1989 in favour of the applicant-parent.

iii  The reasonable proposals of the parent with a residential order wishing to live abroad carry great weight.

iv  Consequently, the proposals have to be scrutinized with care and the Court had to be satisfied that there is a genuine motivation for the move and not the intention to bring contact between the child and the other parent to an end.

v  The effect upon the applicant-parent and the new family of the child of a refusal of leave is very important.

vi  The effect upon the child of the denial of contact with the other parent and, in some cases, his family is very important.

vii The opportunity for continuing contact between the child and the parent left behind may be very significant.” (per Bulter-Sloss P at para.85)

27. Of Payne v Payne and the criticisms that have been made of it, Moore-Bick LJ in K v K [2012] Fam Law 134 said:-

“[86] I accept, of course, that the decision in Payne v Payne is binding on this court, …but it is binding in the true sense only for its ratio decedendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute judges at all levels must pay heed to that guidance and depart from it only after careful deliberation….having considered Payne itself and the authorities in which it is discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance …. As I read it, the only principle of law enunciated in Payne is that the welfare of the child is paramount; and all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it continued principles of law from which no departure is permitted. Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them”

28. In the same decision, the principle that the welfare of the child is the paramount consideration was soundly adopted by Black LJ, who said in her Judgment:

“[141] The first point that is quite clear is that, as I have said already, the principle - the only authentic principle - that runs through the entire line of relocation authorities is that the welfare of the child is the court’s paramount consideration. Everything that is considered by the court in reaching its determination is put into the balance with a view to measuring its impact on the child.

[142]  Whilst this is the only truly inescapable principle in the jurisprudence, this does not mean that everything else - the valuable guidance- can be ignored.  It must be heeded for all the reasons that Moore-Bick LJ gives but as guidance not as rigid principle so as to dictate a particular outcome in a sphere of law where the facts of individual cases are so infinitely variable”

29. In summary, the only legal principle remains that the welfare of the child is the first and paramount consideration.  In the application of this welfare principle, the Court should take into consideration the valuable guidance laid down in the authorities and weigh all relevant factors properly and to balance the different options, one against the other, to make a decision that the Court considers to be in the best interests of the child.

Discussion

30. In view of the importance of the reports from the Director of Social Welfare, I shall firstly embark on a discussion on F’s criticisms on the SWO.  I shall next deal with the historical care regime of the child, including the parties’ disputes over whether the arrangements for C to live with F were temporary or permanent, M’s involvement in C’s care during the period that C lived with F and about the incident dated 24 September 2014. After that, I shall endorse the practice of taking into consideration the matters specified in s.1 (3) of the English Children Act 1989, which has been called the Welfare Checklist, insofar as they are relevant to the present case. This latter part of my discussion will include some deliberation on topics such as M’s capability to care for C, C’s relationship with the respective parties, C’s relationship with the concerned third parties and C’s wishes and feelings. Lastly, the Payne v Payne guidelines will be adopted and applied.

The 1^st and 2^nd SIR

31. In assessing the best interests of the child, the Court will regard all the relevant factors. Section 3(1)(a)(i)(B) of the GMO prescribes that the Court must give consideration to any material information including any report of the Director of Social Welfare available to the Court at the hearing.  In both the 1^st and 2^nd SIR, the SWO proposed to keep the status quo, i.e. joint custody to the parties, with care and control to M, plus additional access to F during long holidays in response to F’s relocation to Singapore.

32. In the 1^st SIR dated 16 January 2015, the SWO stated:

“ 32. C was first interviewed after the observation session on 9.12.2014. She impressed to the Investigating Officer a cheerful and outspoken girl with smiling face. C showed her intimate relationship with Madam Lee, her mother. When Investigating Officer asked her to describe more about her school life and family, C showed that she enjoyed the studying and activities in her school. C further stated that she would like to continue her studying in SIS and to stay with her mother in Hong Kong. As C knew that Mr SNG, her father would move to live in Singapore in next year, she hoped that her father could maintain the access pattern as before.

33. C was interviewed again on 6.1.2015 after the Sapporo Trip with his father, D and her step sister. She took initiative to share the photos during the Sapporo Trip with the Investigating Officer. She was found to enjoy the trip with lots of fun. After that, Investigating Officer asked her to describe the interaction with D and her step sister. C replied to Investigating Officer saying that “it was fine” and “can understand more as she may continue her study in Singapore”. C further stated that she had no preference to study either in SIS in Hong Kong or MGS in Singapore.

34. Owing to the tender age, C might not have real understanding on the effect of such as big change on the variation of care and control and permanent removal. She showed no strong views about the schooling and living place. In fact, C hoped that she could meet her parents regularly and both parents would accompany her as before in a harmonious atmosphere. She showed understanding on the deep live from both parents and stated that he enjoyed staying with them all along.

…

43. Regarding the removal issue, owing to C’s tender age, she showed no strong will to reside and study either in Singapore or Hong Kong.  All her concern was to maintain her linkage and contacts with her beloved parents, and also a stable living pattern for her studying.”

33. In the 2^nd SIR dated 4 June 2015, the SWO stated:

20.  During the office interview, C took her initiative to share her sad feeling when she was staying with F and D in Singapore.  She cried as she did not know why she could not contact her mother via Facetime during the holiday.  However, it only reflected that different person adopted different parenting style as D might only want C to sleep earlier.  Despite that, C did not express her bad feeling towards D.  On the other hand, C showed that she could develop good relationship with (her stepsister).  It was predicable that the situation would become more complicated if both parties (M and D) held different parenting styles.  C might be the center between two fires.

21.  In the course of present enquiry, the Investigating Officer gave more chances to let C to share her feeling and the latter could share her feeling and views because she was familiar to the same Investigating Officer.  It was obvious to draw a comparison between C’s latest views and her concept of permanent removal in last investigation period.  C clearly showed that she preferred to stay in Hong Kong as she loved her mother so much and no one could replace her mother. Besides, C satisfied with her studying in SIS in Hong Kong.  Not only achievements in her academic and sport performance, C recognized many good friends in SIS who always supported her.

….

23. Information gathered revealed that C clearly showed her wish to stay with her mother and to continue her study in Hong Kong at the present stage…”

34. The SWO was subject to lengthy cross-examination.  F contended that the SWO’s reports are not thorough and as such his conclusions are not reliable.

35. In the 1^st SIR the SWO wrote, “… the required International Social Welfare Report could not be submitted … As such, the living environment, schooling, family dynamics in Singapore could therefore not be included in this Investigation Report” (para 3[P1/304].  In her closing submissions, Ms Rattigan remarked that the SWO had therefore not considered these matters when he made his recommendation that M should have care and control of C and that C should remain in Hong Kong.  I have explained in the above that the International Social Welfare Report was dispensed with by the parties’ consent.

36. It is also remarked that the SWO’s conclusion that “it might not be a good time to actualize the removal plan for C at the present stage as there are many uncertainties and adjustment problems that the new couple would face in the coming years” (para 39[P1/314]) is based on the wrong premises that “D just returned to Singapore from Britain for a short period only, she might take time to adjust her job and establish her social circle while the stepsister will take time to adjust in the MGS” (para 40[P1/314]).  It is accepted that D and A moved back to Singapore 6 years ago.  During cross-examination, the SWO explained that he wrongly believed that D just returned to Singapore because he had been told by F and D that she came back only for a short period of time, but having considered that, he maintained his conclusion and recommendations as set out in his two reports.

37. Ms Rattigan came down hard on the SWO for his alleged failure to interview DH.  The SWO actually wanted to interview her, but she indicated during the second interview on 13 January 2015 at M’s home that she did not want to be involved.  However, F contacted the SWO by telephone on even day in the afternoon.  During the said telephone conversation, he wanted the SWO to meet DH in Wanchai later on the same day.  During cross-examination, the SWO revealed that he refused the requested meeting because it was on very short notice, that he considered the suggested meeting place was not appropriate, and that M was DH’s employer.  I accept that it would have been highly irregular for the SWO to surreptitiously meet DH in Wanchai, behind her employer’s back.  The absence of DH’s input in the report was her choice.  In any event, the Court has seen and heard DH and can assess the value of her evidence

38. The SWO was also hit for his alleged failure to interview any of C’s school teachers.  The SWO read C’s school reports for the first and second semester of 2013/2014 i.e. September 2013 to June 2014 that showed her school performance was very good and she was an obedient and polite student with enthusiastic learning attitude when he prepared the 1^st SIR.  However, Ms Rattigan remarked that the SWO should have interviewed C’s teachers to see how she was coping at school since she moved from F’s home in September 2014.  C was first interviewed by the SWO in December 2014.  When she was asked to describe more about her school life and family, she said that she enjoyed the studying and activities in her school, and further that she would like to continue her studying in SIS.  She was interviewed again in May 2015 when the SWO prepared the 2^nd SIR.  She said she felt that her study in Hong Kong was very good, that she was satisfied with her results, and that in school she had many good friends that always supported her.  The SWO explained that since C had told him clearly that she was happy in school, he considered there is no need to have interview with her teachers.  I accept his explanation.

39. The SWO did not interview P. He did not even know of the fact that M was in a relationship with a married man. I accept that an opportunity of having an interview with P might help the SWO’s investigation. 

40. The SWO was criticised on that allegedly he reported more of the M’s version of important events relating to C’s care than the F’s.  The SWO was further picked on his explanation that he is unable to report everything.  The SWO has done the investigation by having interviews with the child, the parents on their own, and each parent with the child and the other concerned third parties.  He also had access to the Court file and he could review the affirmation evidence filed.  The SWO’s role is neutral and his duty is to investigate on the Court’s behalf as to the arrangements for the child and make reports from an independent point of view. I accept that he cannot, nor is there the need for him, to regurgitate everything that he heard, seen or read.

41. The SWO is experienced, having prepared over 200 reports, about two to three of which are in relation to removal cases.  Taking his testimony in the round, despite Ms Rattigan’s ability to argue to the contrary, I do not doubt the impartiality and ability of the SWO.  I take the view that the recommendations of the SWO might carry substantial weight with the Court, despite that the Court is not bound by his views.

The historical care regime

42. The SWO has helpfully delineated 4 phases in C’s historical care regime:

a.   Phase 1 - from November 2011 (the date of the petition) until August 2012 (when C moved to live with F)

b.   Phase 2 – from August 2012 until 24 September 2014 (when C returned to live with M)

c.   Phase 3 – from 24 September 2014 until 17 November 2014 (when directions and orders were first given on the present application)

d.   Phase 4 – from 17 November 2014 until the present

43. There is little dispute that at Phase 1, M was C’s primary carer, and she had her care and control, with F having regular access and was proactively involved in her care. 

Was the stay in F’s home from 2012 to 2014 temporary or permanent?

44. M asserted that the arrangement whereby C went to live with F in 2012 was temporary, but it certainly was not temporary as far as F is concerned.  He said that M approached him and told him that she was “tired of being a mother” and that she was unable to continue to care for C, and that he then expressly told M that once she decided to send C to live with him, there would be no turning back as he would not allow the child to be treated as a “ping pong ball” to be passed from one parent to the other out of convenience.  

45. In evidence-in-chief M accepted that the expression “ping pong ball” was mentioned but she understood this was referred to “to-ing and fro-ing” during the period of 2 years when she pursued the Masters course.  M said that by August 2012, in view of her irregular working hours, as well as the upcoming weekday evening and occasional Saturday classes of the Masters course, she considered that it might be beneficial for C to live with F on a temporary basis so that she could spend the evenings with him whereas she would be able to spend time with C whenever she was not working or studying.  As the parties were on good terms then, she believed that they could co-operate in co-parenting and in providing care for C. At that stage, she believed they both anticipated that the arrangement would be temporary.  She was never “tired of being a mother”.  She said he had taken her words out of context from a casual conversation they had while she was venting about the usual stresses of life.  As stated by her, during the period of the temporary stay she continued with her role as mother.  She said she was the first point of contact for C’s school nurse and her teacher, and she helped with her studies and revision, arranged her Maths and Chinese tuition, and attended her school activities such as her school sports day, school swimming gala and the gymnastic competition, as well as continued to arrange her extra-curricular activities such as the ballet and swimming classes and play dates for C and her buddies. 

46. After the directions hearing dated 17 November 2014 when leave was granted to F to adduce further affidavit within 7 days (i.e. 17 to 24 November 2014), F obtained DH’s 1^st Affidavit on 18November 2014, but he did not file or serve the Affidavit until 26 August 2015.  He tried to explain away the late disclosure by saying that it is because he was asked by DH, who worked for M until 12 July 2015, to refrain from using her sworn Affidavit.  In her Affidavit, DH further explained that it was because she did not want to be confronted by W as a result of the filing of the Affidavit, and that she was fearful because she had read news reports previously of employers deliberately planting valuables in the domestic helper’s room to frame them for theft or, worse still, causing physical harm or murdering their domestic helper.  Ms Remedios remarked that the disclosure at the eleventh hour smacks of “litigation by ambush”.  Ms Rattigan contested that the allegation of “litigation by ambush” is entirely wrong as the decision to make the late application for the inclusion of DH’s evidence was made by her as she prepared the present trial.  I take the view that it is inexplicable why F chose to withhold the disclosure of the 1^st Affidavit until 26 August 2015 i.e. the first day of the trial.  It is indisputable that he always knew that DH’s evidence was highly relevant.  As a matter of fact, he told DH that her evidence was highly relevant when he asked DH to provide an Affidavit (para 9 [P2/567]).  As an experienced litigation lawyer, he must know that he has the duty of disclosure of the highly relevant Affidavit evidence from DH.  Although I do not see the possibility that she would be framed or even murdered by a Chief Inspector of the Police for the filing of her Affidavit, I accept that while she was working with M, DH might not feel comfortable to get involved in the parties’ disputes.  Even if that was a reason to withhold her evidence from November 2014 until July 2015, there was no excuse to do so from 12July 2015 until 25 August 2015.  I agree with the submission that the late disclosure smacks of “litigation by ambush”.  I would however add that the late disclosure is no reflection on Ms Rattigan, who has only recently come to know the existence of DH’s 1^st Affidavit.

47. F stated in his 1^st Affidavit that (M) “had called me to say that she had thought it over and had decided that she wanted me to assume daily care and control of C henceforth” (underlined added).  However, F accepted in his 3^rd Affidavit (para 19 [P2/434]) and during his cross-examination that the underlined words were not said by M.  As an experienced litigation lawyer, represented by Family Law specialist solicitors, whether or not he had intended his written evidence on oath to mislead, he and/or his solicitors must have appreciated the legal significance of using the expression “care and control” in this context and the effect that this might have had on a tribunal of fact if his documentary evidence had been taken at face value.  The use of specific terminology by a litigation lawyer, advised by specialist family lawyers, cannot be an inadvertent mistake.  I accept that the use of the underlined words in his 1^st Affidavit is misleading.

48. I also accept that F has also been misleading when he said in his 1^st Affidavit (para 13[P1/9]) “I had to reorganize and furnish sections of my flat not only to accommodate C living with me but also the domestic helper …” It is accepted that it was M who organized a contractor to make a trundle bed that accommodated C and DH in his flat and there was no other refurbishment. 

49. The above demonstrates that F had tried to play his case up so as to underplay M’s case.  It shows that he as a witness might not be as candid as he should have been.

50. I take notice that during the time she lived in F’s home, C did not have her own room, and she also left many of her possessions in M’s home.  F said C was excited to share a room with DH.  However, C had her own room in M’s home.  His home in Hong Kong had 3 bedrooms and a maid’s quarter.  I believe had it been a permanent arrangement, he would have made the arrangement for C to have her own room. 

51. I further take notice that M as employer renewed DH’s employment contract in June 2013.  Ms Rattigan remarked that M once told F that he should take up DH’s employment contract when it expired in June 2015.  M explained that in the summer 2014, DH left Hong Kong for Singapore without informing her.  She stated that she was very annoyed and therefore told DH that at the end of her contract she should sign with F.  I accept that the said conversation that was arisen out of her annoyance of the said incident was merely uttered as an admonishment to DH.  It is also worthy of noting that M and DH eventually signed a new contract in June 2015, despite that the new contract was later cancelled.  I believe had C’s stay at his home from 2012 been a permanent arrangement from the start, F would have taken over DH’s employment contract as early as in 2012/ 2013.

52. On top of the above, it is not disputed that M asked C to return to live with her in the summer 2014, notwithstanding that the parties disputed over whether C declined M’s request. I take the view that M broached the subject before the coming up of the issue of relocation is consistent with her case that arranging C to live with F was not intended to be permanent.

53. I regard all of the above support M’s case.

54. Ms Rattigan submitted the fact that the Masters course could have taken longer than 2 years militates against M’s case.  M’s case is that her decision to arrange C to live with F was a temporary arrangement made by her in C’s best interests as M was embarking on a Masters course that would last about 2 years.  That she would finish the Master course in exactly 2 years or about 2 years is neither here nor there.

55. Ms Rattigan also made the point that M’s decision to send C to live with F was just as much about her busy job as the Masters course.  Even though M has struggled to balance between work and her mother role since C was born, I take notice that she has actively an d personally taken up the care and control of C.  I do not accept that she would have given up the care and control of the child solely due to her busy job.

56. Having carefully considered all circumstances, I accept that C’s stay in F’s home from August 2012 to September 2014 was a proactive, co-parenting temporary arrangement.  In this respect, I prefer her evidence to his. 

Involvement of M during the 2 years that C lived with F

57. M said she continued to care for C as a mother during the time that she was living with F. She said she attended his home about 3 to 5 times a week, and often spent Saturday and Sunday dinners with C.  When she was there, she would spend time chatting with C, checking her homework, helping her to revise for dictations, preparing examination papers, having dinners with her, and helping her to get ready to bed, before leaving at around 9:30 p.m.  She would call or facetime with C almost every day.  She carried on making the day to day arrangement for C, including tuition, extra-curricular activities and play dates.  She remained the first point of contact for her school nurse as well as school teachers.  She also attended her school activities, such as school sports day, swimming gala and gymnastic competition.

58. F said during that period of time, M had unrestricted access to visit and spend time with C at his home. M would come to his home 1 or 2 weekday evenings each week to have dinner and help C with her homework, and would occasionally meet C for dinner on Friday evenings after C’s ballet lesson.  In addition, when he had to travel for work usually 3 to 4 times a year, M would stay at his home to keep C in company.  On the weekends, C would usually spend Saturday with M between having to go to Math tuition and ballet lessons but she would not otherwise stay overnight with M at her home.  For his part, he said that he would endeavour to make it home for dinner with C every weekday evening, except for Friday (when he plays tennis), and spent time helping her homework or chatting with her.  On every Thursday evening, he would bring C out to have dinner with his father.  On Sundays, they would normally have breakfast at home, and then do some reading or homework before they went out together for music lessons.  Their Sundays would end usually with dinner at a restaurant outside and he would sometimes invite M to join.

59. The parties were different in whether M went to F’s home 1 to 2 times or 3 to 5 times per week, and how many overnight stays that she had during that period of time.  After having seen and heard the parties, once again I prefer her evidence to his.  Despite that C lived with F in Phase 2, I accept that M continued taking care of her as a mother.  It is nevertheless clear that F did his best as father and he spent a lot of time with C, and he and C were very close and no doubt she was very happy.

The Incident on 24 September 2014

60. On 19 September 2014, F requested a meeting with M to talk about C and they did so over dinner on 20 September 2014 Saturday.  At dinner, he told M that he had decided to re-marry, that he was planning to relocate to Singapore, and that C wanted to continue living with him and his new family in Singapore.  On 24 September 2014, she made an unannounced visit to his home at approximately 6:30 am.  At the time, D was visiting Hong Kong and was staying with him.  After he introduced D to her, she brought C down to take the school bus.  Shortly afterwards, she returned to his home and told him that she was taking C back to live with her and started to pack up C’s clothes and other belongings.  After that, she requested C’s passport, which he gave her.  The atmosphere in the flat at the time was extremely unpleasant and tense.  He thought that the manner in which she removed C from his home on 24 September 2014 was deplorable.  He protested against this sudden and unexpected action by her.  He sent an e-mail to her the next day imploring her to return C and discuss things rationally but she refused.  He was of the opinion that she clearly did it as she was focused solely on getting control of C as opposed to acting in C’s best interests. 

61. M’s evidence is that on 19 September 2014, F sent her a Whatsapp to request for a chat.  She asked him what it was about and told him she would be busy since she had to submit her dissertation in the next morning.  She suggested lunch on the same day.  He replied that he wanted to talk about C, and counter-proposed meeting in the following afternoon.  On 20 September 2014 in the morning, after she had submitted the dissertation, she asked to meet him over dinner instead as she also intended to discuss arranging C to return to live with her.  To her complete surprise, at the dinner, he suddenly announced that he intended to take C to Singapore as he would re-marry and move there.  She was shocked and was astonished that he had told C all those before even mentioning his plans to her, nor ever seeking her view on that.   She was concerned that although he and D met at school, they did not commence a romantic relation until August 2014, and within about a month, he decided to re-marry, relocate and remove C to Singapore.  She believed that his decision to re-marry and to relocate was made in haste.  She was worried that C would not be mature enough to consider the realistic implications of being relocated to Singapore, and her first reaction was that it would be best to bring C away from his home immediately.  She visited C on 22 and 23 September 2014.  During their chat about the matter, she was asked by C why she did not go to Singapore with her, and at that time, both of them cried.  She was heartbroken.  On 24 September 2014, she went to his home to accompany C for breakfast and school as she did occasionally to surprise C.  She said she did not premeditate to bring C back on that day when she set off for his home.  However, in that morning, upon her arrival at his home, she stumbled upon D in his dining room.  She became extremely worried about the impact of him introducing a third party to C in this way, with D staying in the flat on what was probably the first occasion that C met her, when she was not yet married to him.  She was also concerned that they would remove C without notifying her.  She therefore on-the-spot decided to immediately bring C back to live with her.  After sending C to school on that morning, she went back to his home, told him that she was bringing C back to live with her, and in his presence packed up C’s belongings.  She then left but afterwards returned to request for C’s passport.  She said when she told him that C should resume living with her right away, in the heat of the moment he said inflammatory things like “you want to play ugly? I will ‘do’ or [‘play’ she was not sure which word he used] ugly to you”.

62. F disagreed with M’s allegation that his decision to marry D and to relocate to Singapore was made in haste.  He also disputed her allegation that she took C back because she was worried that he would take her to Singapore without notifying her.  He suggested that she knew full well that he could not take C to Singapore without notifying her as he had given her C’s passport and she should have also been told of this by lawyer.  In re-examination, she clarified that prior to the morning visit on that day, she had not consulted lawyer and furthermore, C’s passport was handed over after but not before she decided to bring C back to live with her. 

63. It is accepted by the parties that M was shocked by F’s sudden announcement of his plans to re-marry and relocate to Singapore with C.  She was astonished that he had told C all those things before mentioning his plans to her or seeking her views.  Having carefully considered all circumstances, I accept it is probable that having been in a state of shock, and loaded with her beliefs (rightly or wrongly) that F’s decision to re-marry and to relocate with C was made in a haste, and her concerns (again rightly or wrongly) that C was too young to fully understand the realistic implications of being relocated to Singapore, and that he would remove C one-sidedly, despite that she did not calculate to bring C back when she set off for his home on 24 September 2014, she suddenly decided to immediately bring C back to live with her after she saw D in his home.  I accept that she might have no motivation other than her beliefs and concerns for C’s welfare, but she still made a snappy decision on 24 September 2014, and C was nonetheless clearly distraught by the unexpected move.  Understandably, F denounced her sudden and unexpected action.  I accept that she should have first discussed with him before she took the steps to bring C back.  It is however equally important to take notice that he should have first of all discussed with her about his plans before he unilaterally told C all those things without considering what she would think.  It is distressing that both parties have failed to communicate with each other, or to work hard to achieve an agreement between them.  If they had done so, it was possible that they might not have ended up in this Court asking a judge to make these important decisions for them.

The Welfare Checklist

(a) The ascertainable views of the child concerned (considered in the light of her age and understanding)

64. The court has a duty to consider the child’s wishes pursuant to s 3(1)(a)(i)(A) of the GMO.  I have set out the SWO’s report on C’s wishes in the paragraphs 32 and 33 in the above.

65. F said while C was living with him, he told C about his plans to re-marry and to relocate to Singapore.  She responded very positively to this, and she was excited about having an elder sister and wanted to continue living with him and his new family in Singapore.  He observed that C has become less expressive and more inhibited since she returned to live with M.  He further said that on 29 October 2014, when he asked C whether she would be happy to live with M if he relocated to Singapore, she answered that she wanted to go to Singapore.  At the end of January 2015, C gave him a note in which she wrote that she wished to permanently live in Singapore [P2/455], and she asked him to give it to the judge.  In addition, when the parties attended a parent-teacher meeting on 9 February 2015, they were shown a recent entry from C’s pastoral care journal where she wrote that she wanted to go to Singapore but M had told her that she would be kidnapped if she went to Singapore.  In the circumstances, he contended that the 1^st SIR failed to reflect C’s true wishes.  M however took the view that he was unnecessarily dragging C into what should be an adult issue and ultimately a decision for the Court.

66. In the Pre-Trial-Review dated 16 March 2015, F applied that a psychologist’s report of C’s wishes be called for.  He asserted that C has developed so-called Stockholm Syndrome. He has not produced any evidence to substantiate his assertion.  M opposed his application.  I take notice that an order for psychologist’s report should not normally be made unless there is or is suspected to be a specific and identifiable problem or potential problem on which the Court needs assistance which can only or most conveniently be provided by a qualified psychologist[1].  In the 1^st SIR, the SWO observed that C was a cheerful, smiling and outspoken girl who took the initiative of sharing her travelling photos with him, that she enjoyed studying and activities in school and was able to show understanding on the deep love from both parents and enjoyed staying with all of them.  There was not a shred of evidence showing that C has been suffering from any psychological problem.  On the contrary, F said in his 3^rd affidavit filed on 12 March 2015 that “… she had grown into an intelligent, sensitive and mature child who is able to form her own views on matters affecting her.”  Accordingly, his application for psychologist’s report was refused.  Direction was however given for the filing of an updated SIR.  

67. Ms Rattigan submitted that C’s wishes as reported to the SWO cannot carry any weight.  I have dealt with F’s criticisms on the 1^st and 2^nd SIR.  The SWO has explained that the views of the child are not sought by direct questions.  He has spoken to C and with her respective parents separately.  He has given C what looked like a form for her to fill in and during cross-examination he read out a part of C’s answers, indicating that the purport of C’s responses has been reflected in his reports.  I take the view that it is within the expertise of an experienced social welfare officer to infer a preference from the comments and demeanour of the child.  In the premises, I do not accept Ms Rattigan’s said submission.

68. Even though C had probably been ambivalent about with which one of the parties she would prefer to live with, she wants to live with M.  For this reason, F complained that M has somehow pressurised C to change her mind from being “happy” to go to Singapore to not wanting to go.  M denied that she applied any pressure on C, or that she has in any way interfered with the relationship between C and F.  She believed that C has been in a conflict of loyalty and wanted to please both parties but at the same time felt under pressure to make a choice between them.  She explained that the matter about “kidnap” arose when C was playing online spelling games and she worked out the clue: “kid” and “nap”.  She said she had no intention to scare her.  I take notice that she has historically facilitated access.  I accept that she invited F to her home to see C, and that she co-operated when F asked to take C to Singapore on short notice at the Chinese New Year holiday in 2015, notwithstanding that this would mean C would miss the year-end dinner with her family.  I also take notice that when C refused F’s request to spend 7 days in the summer 2015 in Singapore, she took the initiative to persuade C to spend time with F in the summer.  At the end, C accepted that she would spend 4 days in Singapore.  She then arranged for F to meet C and her at Starbucks on 1 July 2015.  Unfortunately, F and C clashed, with F insisted on 7 days and C refused to go for more than 4 days.  She later contacted F and arranged a meeting again on 3 July 2015 and tried to find a consensus for F and C but was unsuccessful.  Despite that C had initially told F that she wanted to move to Singapore with him, but she at last told the SWO she preferred to stay in Hong Kong, looking at the evidence in the round, I do not accept that M has put undue pressure on C to interfere with her relationship with F, so much so that C would have said one thing to him and another to the SWO.

69. The 1^st SIR dated 16 January 2015 was prepared shortly after F’s re-marriage and the skiing holiday trip that C, with him and his new family took from 19 to 28 December 2014.  The pastoral care journal that was shown to the parties at the parent-teacher meeting on 9 February 2015 would have been composed in the post Christmas term i.e. after the skiing holiday but prior to the two trips to Singapore that took place at Chinese New Year from 14 to 19 February 2015 and Easter holiday from 2 to 12 April 2015.  During cross-examination, the SWO accepted that it was normal for children to want to be close to both parents.  Despite that C clearly enjoyed the skiing holiday, she would have been torn between the parents she loved.  Thereupon, in the 1^st SIR the SWO stated:

“34. Owing to the tender age, C might not have real understanding on the effect of such as big change on the variation of care and control and permanent removal.

…

43. Regarding the removal issue, owing to C’s tender age, she showed no strong will to reside and study either in Singapore or Hong Kong.  All her concern was to maintain her linkage and contacts with her beloved parents, and also a stable living pattern for her studying.”

70. After that, respectively in Chinese New Year and Easter 2015, C went to Singapore to stay with F and his new family.  These two visits were the first opportunities that she actually experienced what it would be like for her to live with him in the same household with D but without her mother in Singapore.  Having been apart from M for a long time during those trips, she at last realized that she did not want to be separated from her mother, who was described by her to the SWO as irreplaceable in the 2^nd SIR.  The penny plausibly dropped at that moment.  I accept that C has since resolved to live in Hong Kong with her mother.    

(b) Her physical, emotional and educational needs

Physical, emotional needs

71. On 18 April 2015, C sent a text where she asked “Daddy can we stop sleep over now like [her stepsister]?” C went on to say she, like her stepsister, was “growing boobies”.  Her stepsister only has Sunday day access with her father.  C’s texts to F were put to M in cross-examination to suggest that she was the mastermind behind the message, and that she sent the message for the purpose of interfering with F’s access.  Such suggestion is wholly inconsistent with the fact that I have accepted that she has historically facilitated access.  The message however highlights the reality that C is going to puberty.  M accordingly said the present time was not an appropriate stage of life for C to be uprooted from her mother, her school, relatives and friends in Hong Kong.  The SWO also took the view that “As mother of C, she could render sufficient support and concern for C who will go to puberty soon.” [P1/314]  In this regard, I accept that M as her natural mother might play a special role in her growth and development needs as C goes through puberty.

Educational needs

72. F’s choice of school for C is MGS.  As C has been studying at SIS where the academic program is designed to mirror that in Singapore, he contended she would have no problem to settle down well into MGS.  M contested that C has been doing well in SIS and there is no need to change school.  F however gave evidence that she was in Band 3 for all subjects except English in the recent examination.  Band 4 means fail.  She also did very poorly on the English language paper getting 24 out of 48.  He said M simply does not have the time to help C.  It is accepted that C has historically been a good student.  She has got full marks in all subjects but one dictation that she received 49/50 in a more recent test.  I accept the view that her disappointing results of the last semester of the past academic year were likely to have been due to the adverse effects of the present litigation and parental conflicts.  I believe that she will move on once the present litigation goes away, though she would have inevitable ups and downs in the meantime.  There is no real dispute that both SIS in Hong Kong and MGS in Singapore are good schools.  I accept that there is little at issue as regards education.

(c) How capable each of her parents, and any other person in relation to who the court considers the question to be relevant, is of meeting her needs

73. M did not dispute F’s ability to care for C, and he did very well in the two-year period that she lived with him.

74. Though M has been actively involved in the day to day care of C since her birth, seemingly a paradox, the first and foremost issues taken by F in the present case is M’s capability to take care of the child and to meet her needs.  F alleged that M was unable to look after C on her own.  One of the background facts on which he relied in support of his aforesaid allegation is the present situation that she did not have DH to help her in Hong Kong.  He said that C has recently turned up to dinner with him in a stained school uniform and without socks because she had not been able to organise herself properly.  He also criticised that M decided not to re-employ DH without any discussion with him. 

75. According to M, DH sought alternative to working for her.  DH’s contract salary was about $4,000 plus a food allowance.  Prior to the interview with the SWO, in preparation for the 2^nd SIR, DH told her that her aunt knew of someone who was prepared to pay her $6,000 a month and by that she understood that DH wanted $6,000 a month in order to continue working for her.  On 30 April 2015, DH texted that her “aunt want to know my decision and I want to get prepared.”  There was also a text from DH on 14 May 2015 by which DH asked her about her decision as to her wage.  She was not prepared to be squeezed in such a way but was in a dilemma as DH had been looking after C.  She agreed to renew her contract but only at $4,110 plus a food allowance.  They signed the contract on 22 May 2015 but DH did not process that with the Philippine Consulate until after she had reminded her about that.  As it turned out, the contract was never submitted to the Immigration Department.  She had booked leave for the summer, and on 8 June 2015, she asked DH to arrange to take the required exit between contracts at the time when she was on leave.  On 9 June 2015, DH said to her “I also want to clarify mdm about my wage”  From her perspective, there was no need to “clarify” DH’s wage as that had been set out in the signed contract in black and white.  In her mind, by saying this DH wanted more for her wage than what had already been agreed.  She then came to realise that it was not feasible for DH to continue working for her because she believed that DH was squeezing her for more money.  She felt that the working relationship between them had broken down.  So she told DH that she would not go ahead with the contract.  On the very next day i.e. 10 June 2015, DH told C that she would take care of her stepsister in Singapore.

76. DH said that having made her 1^st affidavit in November 2014, she was aware that F had taken out the present application for leave to bring C to live with him in Singapore.  She therefore told F that if C moved to Singapore, she would be very happy to move there to work for him, and F replied her that he would be happy to employ her if she wished to move to Singapore to work.  On or about 17 May 2015, she sent F a message through Whatsapp informing him that because no decision was made in these going on proceedings and that she was required to have her contract renewed not later than 2 months before the expiry of the existing work visa, she had decided to sign a new contract with M.  On or about 29 May 2015, she signed the new contract with M.  She had the new contract notarized on 8 June 2015.  On the same day, M told her that she wanted her to return to the Philippines for her annual holiday in July.  This put her in a very difficult position as she had only just returned to the Philippines in April 2015 and needed to save some money before going home again.  She tried to get M to see her point of view, but M refused, and she thereafter decided to cancel the new contract that they had signed.

77. In order to justify his decision to press on for a full trial, F claimed that he did not know that M had not renewed the contract with DH until sometime after the CDR on 18 June 2015.  I accept Ms Remedios’s submission that such excuse is implausible.  It is because given DH’s evidence that she and F had discussed the possibility of him employing her in Singapore by November 2014, it is unlikely that DH would have failed to contact him for a month after she had lost her job on 9 June 2015.  His evidence on this issue is also contradicted by DH’s evidence.  Under cross-examination, she said when M told her on 9 June 2015 that she would not go ahead with the new contract, she messaged F and he agreed to employ her in Singapore.  Her evidence is in collaboration with M’s evidence that on 10 June 2015, DH told C that she was going to Singapore to look after her stepsister.  M said DH had spoken that her aunt knew of someone who was prepared to pay her $6,000 a month.  I take notice that F is paying DH S$1,000 a month.  There is evidence that in the autumn of 2014, the exchange rate was about HK$6 to S$1. An offer to pay S$1,000 would be the equivalent of an offer of $6,000 that approximately doubles the Singaporean minimum wage for foreign domestic helpers i.e. UD$400 at then.  By who and when was the issue of remuneration raised?  Despite that both F and DH were coy on this topic, I take the view that it is more likely than not that F was the person who had eventually offered to employ DH for $6,000 a month.  Against this backdrop, I take the view that his criticism that M made the decision not to re-employ DH without any discussion with him is disingenuous, as I believe that he already knew all of the relevant facts directly from DH.  As a matter of fact, he had offered to employ her with a higher wage long before M’s decision on 9 June 2015.  No doubt they have kept in touch with each other on the subject matter.

78. Alongside with F’s criticisms about M’s capability of taking care of C, DH in her Affidavits likewise put M as a mother in a very bad light.  She was critical of M on every topic, from the parent and child relationship, quality of her care on C, her married boyfriend, to time management and her relationship with her extended family.  I deal with DH’s evidence as follows.  Shortly put, DH did not strike me as a reliable witness.  Her demeanour was extremely unsatisfactory.  As taken notice by Ms Remedios, when she was caught out or otherwise unable to answer in cross-examination, she would frequently look across the courtroom towards F, like she was seeking help.  Her alleged fear that M could murder her is completely groundless.  She showed to be overzealous about supporting F’s case so much so that she was prepared to make unsupportable testimony.  She gave the evidence in cross-examination that the words in her Affidavit were her own including the words “pausing here” and “walking on eggshells”, despite that it was revealed that she clearly did not understand the meaning of those phrases.  On re-examination, she gave an inconsistent account, viz., that she told her story but the Affidavit was drafted by lawyer.  If the latter was correct, the evidence she had given in cross-examination would be untrue and she had also signed a document that contained assertions that she did not understand.  This shows that she is at the least an unreliable witness.  It was not her command of English, but her repeated insistence under cross-examination that the said words in her Affidavit were her own, notwithstanding that she clearly did not understand them, that was criticisable.  It also appears to me that her recount of the incident that M threw cups while she and P were having an argument, with some new details not previously referred to in her Affidavit, was an exaggeration.

79. During cross-examination, when he was asked whether his recommendation that M should retain C’s care and control was based on the assumption that she would have DH’s help, the SWO answered in the negative.  He explained that he had looked at many factors such as what were the best care and the most stable living environment that she would have.  When he was asked whether he was concerned about the present situation that DH no longer worked for M, he again answered in the negative. He added it was common that working parents would require the help of domestic helpers.  It is given that domestic helpers come and go.

80. M said after the renewal of DH’s contract did not go ahead, she applied for a new domestic helper but unfortunately the first one failed to report to the maid training school and she had to start the process all over again.  She discussed with C how they should arrange for her care and as she preferred she would have time with her friends until she returned home.  She also arranged a part-time helper to assist and enlisted help from her friends and the parents of her school friends.  Her new domestic helper has recently reported duty.

81. In stark contrast to DH’s evidence, it seems that C has been well taken care of by M.  In the 1^st and 2^nd SIR, the SWO reported that:

“18. Since C returned to her care in September 2014, with the assistance of her maid, Madam LEE resumed her mother role in taking care of C, including day to day routine and studying. She tried her best to adjust her work so that she could return home earlier to accompany C. During holidays, Madam LEE would arrange family gathering for C with her relatives.

…

40… Madam LEE seemed to be able to provide a more stable environment for C.  She could have more time to accompany C after she completed the Master Programme in September 2014.  As mother of C, she could render sufficient support and concern for C who will go to puberty soon.”

82. In the 2^nd SIR, the SWO stated that:

“13. .. Same as the last interview, C impressed to the Investigating Officer a cheerful and outspoken girl with smiling face. C showed her intimate relationship with Madam LEE, her mother…”

83. Having carefully considered all circumstances, I without hesitation reject DH’s criticisms about M’s capability of taking good care of C.

84. F also contended that M was unable to look after C on her own due to the fact that she had a very demanding job.  About this, I take the view that both parties (including F) are devoted working parents who have sacrificed their lifestyles to squeezing time for the care of C, and while both were working full time and requiring domestic help in the care arrangements, each of them was capable of taking good care of the child.  

85. Having carefully considered all circumstances, I accept that M is capable of taking good care of the child. 

(d)The nature of the relationship of the child with each of the child’s parents and with such other persons

C’s relationship with the respective parties

86. In the 1^st SIR, the SWO stated that:

“30. During the interviews and observation, it was found that C related well with both Mr. SNG, the father and Madam LEE, the mother in a secure and comfort way with adequate interaction.

31… As observed, C interacted with her parents in a relaxed, secure and comfortable way with adequate eye contact.  She was responsive to them and enjoyed playing with them.  C even embraced them when she was happy to share her feeling…”

87. In the 2^nd SIR, the SWO stated that:

“13. C showed her intimate relationship with Madam LEE, her mother.  When Investigating Officer asked her to describe more about the relationship with her parents, C said that the relationship with her mother was better than anyone and she emphasized that she liked her more than anyone.  Regarding the father-daughter relationship, C stated that it was “OK” and also showed that she liked to gather with the father.”

88. It is palpable that C has very good relationship with both parties but I accept that her relationship with M in comparison with F is much more intimate.

C’s relationship with D & her stepsister

89. F said after D and he decided that they would get married, he started to introduce C to D by letting C speak with her when they spoke on video calls.  He could sense that C warmed up to her and that D showed a warmth and affection for C as if she were her own child, and the fact that C got on well with D was also apparent from the fact that when he asked C how she felt about D coming to stay at his home when she was visiting Hong Kong, C’s response was extremely positive and they were therefore able to meet for the first time and spend time together when D was in Hong Kong between 22 to 24 September 2014.  C and her step sister have also spoken on video calls and he could tell that both of them were extremely happy that they would have a sibling.  C and his new family spent almost 10 days together during the Christmas 2014 in Sapporo.  D was in Hong Kong in the week of 26 January 2015 and saw C on 29 January 2015 and together with her step sister, celebrated C’s birthday on 31 January 2015 and spent much of the following day together.  Subsequently, C went to Singapore from 14 to 19 February 2015, and D also came to Hong Kong in the week of 16 March 2015 and saw C on 19 March 2015.  More recently, C went to Singapore from 2 to 12 April 2015.  Even when D and her stepsister were not in Hong Kong, C would speak with them regularly on facetime or via Whatsapp.  F contended that C has become close to D and her stepsister.  D in her Affidavit described that she and C have developed a close relationship and rapport and C and her stepsister have already had a close bond.

90. M was sceptical about the contention that C, D and her stepsister were close, in view of the fact that C has actually only met them a few times.  She furthermore drew the Court’s attention to the incident occurred on 3 April 2015 when C was on holiday in Singapore.  During the incident, while C and M were facetiming, M overheard (via facetime) that D spoke to C in a strong tone and slammed her bedroom door.  After that, C cried.  M contended that C’s relationship with D and her stepsister has since taken a turn for the worse.  M and her sister (“S”) gave evidence that C did not like D and she thought D was “bossy”.  The Court was asked to exercise caution when it comes to make a judgment on D’s character because it is unlikely that D would have ascended as high as she has in a well-known international bank unless she has a tough streak to her character.

91. D agreed she had asked C to go to sleep as it was late and C should have been going to sleep, but she did not realise that she was facetiming M, and she denied that she spoke to C in a strong tone or slammed the bedroom door. 

92. This incident is referred to in the 2^nd Social Welfare Report (para 4 [P2/510]).  The SWO reported that: 

“14. During interview, C presented to the Investigating Officer about her sad feeling when she was staying in Singapore with her father, D and [her step sister]. C said that she broke her heart when D stopped her to contact Madam LEE, her mother. She did not know why she could not contact her mother via Facetime during holiday. She felt sad and cried even though Mr SNG approached her to explain that D only wanted her to sleep earlier. Regarding the relationship with [C’s step sister], C stated that the relationship with [her step sister]was good and she treated her as one of good friend.”

…

20. During the office interview, C took the initiative to share her sad feeling when she was staying with F and D in Singapore.  She cried as she did not know why she could not contact her mother via Facetime during the holiday.  However, it only reflected that different person adopted different parenting style as D might only want C to sleep earlier.  Despite that, C did not express her bad feeling towards D.  On the other hand, C showed that she could develop good relationship with [her stepsister].  It was predictable that the situation would become more complicated if both parties (M and D) held different parenting styles.  C might be in the center between two fires.”

93. Taking an overview of the evidence, I accept the SWO’s observation that the incident on 3 April 2015 might be little more than a reflection of the different parenting styles between M and D.  I therefore do not believe that I should put too much about D’s character on the incident.  She will be involved in C’s day to day care if she moves to Singapore.  D appeared in Court to be a warm, intelligent, loving mother.  Having heard and seen her, I accept that she can be a good caregiver.

94. I take notice of the SWO’s observation above that C regarded her relationship with her stepsister was good and she treated her as a good friend, and despite the incident on 3 April 2015, C did not showed bad feelings towards D.  However, D accepted in Court that C was recently less “effusive” than she had been.  As a matter of fact, C refused to go to Singapore for the summer this year for more than 4 days and as F insisted that she went for 7, C did not go at all.  I have not accepted in the above that M has put undue pressure on C so as to interfere with C’s relationship with F and his new family.  I take the view that the aloof response taken by C towards the intended summer holiday in Singapore shows that the relationship between C and D and her stepsister is far from being as close as F would like the Court to believe. 

C’s relationship with F’s extended family

95. F’s extended family including aunts, uncles and cousins all live in Singapore as does his sister who is married with a 7/8 year old son.  F said he was close to his extended family in Singapore. As his sister works full-time, PGM, a retired teacher, helps to care for her son on a regular basis.  She has traditionally spent around 4 months of the year here but she lives for the rest of the time in Singapore.  She and C have a good relationship.  She would like her to live in Singapore so that she could see her on a more frequent basis.  She would also like to support F’s present application. The paternal grandfather has lived in Hong Kong for over 20 years.  He and C also have a good relationship.

C’s relationship with DH

96. She was employed by M from June 2011 to July 2015.  Despite that I have found in the above that DH as a witness is given to exaggeration, it is undisputed that C was very well taken care of by her when she worked for M, and that C was very close to her.

C’s relationship with the mother’s extended family

97. F contended that the relationship between M and her extended family in Hong Kong is not as close as M exerted herself to show.  M is the youngest of 5 sisters.  She said ever since C was born, her maiden family members often met for festive meals, lunch, dinners, barbeques or hotpots either at her mother’s place, or at either sisters’ house.  Her family also met regularly for dim sum until her mother had a stroke, which in turn lessened these dim sum gatherings.  C would enjoy meeting her aunts and cousins.  Her eldest sister and her husband who is a retired pilot often invited C to sleep over and she would enjoy swimming in the private pool of their three storeys house.  C has recently formed a closer bond with the two children of her second sister, upon their return to Hong Kong after they have completed their studies in Australia.  She would often chat with her third sister’s son about computer games or smart phones, and share silly jokes.  She is especially close to her fourth sister i.e. S, who attended Court to give evidence on M’s behalf.  S is the personal assistant to the General Manager of a 5-star hotel in Hong Kong.  Having carefully considered all circumstances, I accept that C and M’s extended family have a good relationship.

C’s relationship with the mother’s boyfriend

98. Midway through the trial, M filed an Affidavit from P, who is a Chief Superintendent of Police, as a result of DH’s evidence.  In his Affidavit, he said after M and he started dating, he came to meet M’s family, including her mother, her sisters and C, and has joined in some of the family gatherings.  He considered that C and he have got along well.  He said he had separated from his wife but was not in the position to make a long-term commitment to M, as he was still married.  Despite that he was given the opportunity to cross-examine P, F declined, and therefore the Court has not heard P’s evidence.  In view of that he has not committed to M, it is accepted by the parties that he is not a caregiver to C.  He is however in M’s life a significant person, with whom C will have contact.  F criticised M for that she has made no reference to her relationship with him until her 3^rd Affidavit dated 31 August 2015 was filed, and she had also concealed the relationship from the SWO, but he accepted that he was aware that she had a married boyfriend, that she confided in him that she had been upset that the relationship was not moving onto a long term commitment, and that she cried for it in front of him and he comforted her.  M explained that she was too embarrassed to mention to the SWO her relationship with a married man who had not committed to her.  DH’s evidence was that M’s relationship with P has had an adverse impact on C, and that C does not like him, while M said they have a good relationship and P said he and C have got along well.  All things considered, I accept that there is no substance in DH’s evidence relating to her allegation that M’s relationship with P has had an adverse impact on C.  Otherwise, F would have taken on that issue in the 2^nd, 3^rd and 4^th Affidavits that he filed since DH’s 1^st Affidavit was prepared.  M gave evidence that P has joined M and C on some family outings, for meals and Chinese New Year dinner, and they have been going out together without her family, and when he was over, sometimes he would play computer games with C, or watch TV together.  C called him “Gor Gor”.  In the circumstance, I accept that C and P are cordial to each other.  I do not accept that M’s relationship with P has had an adverse impact on C.

(e) The likely effect on her of any change in her circumstances

99. It is trite that when families blend to create stepfamilies, things rarely progress completely smoothly. Love and affection take time to develop.  As observed by the SWO, D and M might have different parenting styles.  I accept that the difference between D and M in parenting styles might become more pronounced and can become a source of frustration for C after she moves to live in the same household with D.  Despite that, C and F have very good relationship, she is close to PGM, she knows the paternal uncles, aunts and cousins living in Singapore, and she has visited F’s home in Singapore.  Also, I have taken the view that D can be a good carer for C.  All the above will help C adapt to the changes in her circumstances if she moves to live in Singapore.

100. It is accepted that MGS is a good school.  However, new surroundings, unfamiliar faces and different learning standards will make the transition to a new school stressful for C. Not only is she will face with unknowns, she may feel sad about leaving her old school in Hong Kong, as she is satisfied with SIS where she has many good friends who always supported her.

(f) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

101. I do not accept F’s contention that M has put her own interests above caring for C.  Having accepted that C’s stay in his home from August 2012 to September 2014 was a proactive, co-parenting temporary arrangement, I do not accept his contention that M chose to give up C’s care to him so that she could take on a demanding educational course when she already had an extremely busy full time job.  About the incident on 24 September 2014, I have taken the view that M made a snappy decision, but I have also accepted that she had had no motivation other than her concerns for C’s welfare.  I have not accepted that M’s relationship with P has had an adverse impact on C.  I do not accept his contention that M has put her relationship with P before C’s interests.  I have taken the view that his criticism that M made the decision not to re-employ DH without any discussion with him is disingenuous.  Despite that C was very well taken care of by DH and that C was very close to her, I do not accept his criticism about M’s decision on not to re-employ DH.  I have taken the view that she is a devoted working parent who has sacrificed her lifestyles to squeezing time for the care of C.  I am sure that she loves C and is conscious of her parental responsibilities.

The Payne guidelines

102. The questions posed in Payne v Payne are considered in turn.

a) Is the (Father’s) application genuine in the sense that it is not motivated by some selfish desire to exclude the (Mother) from the child’s life?

103. I also have no doubt that F loves and cares for C.  I consider that he wants to bring C to Singapore because he thinks it is in the interest of the children to be brought up under his care in Singapore.  He acknowledges it is in the interest of the child to maintain her close relationship with M.  He is ready to offer not ungenerous access to M if he will be permitted to bring C to Singapore.  I do not believe his present application has been motivated by any desire to exclude M from the child’s life.

b) Is the (Father’s) application realistically founded on practical proposals both well researched and investigated?

104. F has provided well thought out proposals for his plan for relocation in terms of schooling, accommodation and benefits available to C in Singapore.  There is no real dispute that his application is realistic and founded on well researched and investigated proposals.

c) What would be the impact on the (Father), either as the single parent or as a new (Husband), of a refusal of (his) realistic proposal?

105. F gave evidence that his travel to Hong Kong for work will become more infrequent.  He also has commitments to a new family.  He is working in Singapore and he will have to exercise his access by flying to Hong Kong or by the child flying to Singapore during weekends and holidays, which means that he might not have access to the child as often as he wants.  However, as a partner of the firm that he is working with, I believe that he has some flexibility with his work arrangements, and he has the financial ability to travel to and from Hong Kong frequently to maintain a good relationship with C.  He will have frequent skype and telephone access and generous ad hoc and holiday access.  With all that, despite that his daily contact with C will be reduced, I do not foresee that he will have difficulty in keeping in close contact with C.

d) Is the (Mother’s) opposition motivated by genuine concern for the future of the child’s welfare or is it driven by some ulterior motive?

106. At the same time, I have no doubt that M loves and cares for C and she wants her to stay in Hong Kong because she thinks that it is better for her if the status quo is maintained. She is also prepared to offer generous access to F if C will stay in Hong Kong.  Again, I consider that her opposition to F’s application is driven by her genuine concern for the child’s best interest.

e) What would be the extent of the detriment to (her) and (her) future relationship with the child were the application granted?

107. She is working in Hong Kong and she will have to exercise access by flying to Singapore or by the child flying back to Hong Kong during weekends and holidays, which means that her daily contact with C will be reduced.  Moreover, being a serving police officer, she has little flexibility with her work commitments.  However, she has 40 days’ leave a year in addition to public holidays.  She will have frequent skype and telephone access and generous ad hoc and holiday access.  Once again, I do not foresee that she will have difficulty in keeping in close contact with C. 

f) To what extent would that detriment be offset by extension of the child’s relationships with the paternal family?

108. If C is to be relocated to Singapore, her relationship with M might be undermined, and she might lose the tie with M’s extended family in Hong Kong and even that with the paternal grandfather, but to some extent this will be offset by that she will live with F and his new family, and might be able to have a close relationship with his extended family in Singapore. 

Is it in C’s best interests to relocate to Singapore?

109. As we have seen in the above, s 3 of the GMO states that if there are any court proceedings in which children are involved, the court shall regard their best interests as the first and paramount consideration.  The court has a wide discretion in respect of children and the court will have to consider the facts of each particular case in order to carefully assess what may or may not be in the children’s best interests.  In so doing, the court will take into account all relevant facts such as the wishes of the children or the parents, the needs of the children, their age, sex, background and characteristics, the capacity of the parents to meet their needs, and the conduct of the parents.

110. F believes that it is in C’s best interests to live in Singapore where she will live with him and his new family in an idyllic garden house in a very nice neighbourhood, be looked after by him and his new family with the help from DH, who is very close to her, and she will attend one of the best schools in Singapore.  I have accepted that F, D and DH all are good caregivers.  But then M opposed his application for she thought that he made a hasty decision, that D and C have not had the opportunity of getting along over long haul, and therefore great caution should be exercised in the assessment of the likely effect on the child about moving her to live in the same household with D, that C is doing well at school in Hong Kong and there is no justification for her to change school, and that a young girl like C should remain with her mother in Hong Kong where she has lived since her birth.  I think this is one of the most difficult cases I have ever had to deal with, in view of that both parties are loving parents who have very good relationship with the child, have the capability of taking good care of the child and are devoted to take up their parental responsibilities.  I accept there can be little doubt about F’s ability to take good care of C in Singapore, but all the same C is attending a good school and is well taken care of by M in Hong Kong.  I have also taken the view that each party should have no difficulty in keeping close contact with C, no matter whether she remains in Hong Kong or moves to Singapore.  In the circumstances, I consider that the factors that are important in this case are the child’s physical and emotional needs, her relationship with each of her parents and with such other persons and her wishes and feelings.  I have taken the view that M as her natural mother might play a special role in C’s growth and development needs as she goes through puberty.  I place a particular weight on the fact that M has been the primary carer of C since her birth, and during the time that C lived with F in Phase 2, M continued taking care of her as a mother.  Despite that C has very good relationship with both parties, I place a particular weight on the fact that her relationship with M in comparison with F is much more intimate, and the relationship between C and D and her stepsister is far from being as close as F would like the Court to believe.  In view of her special relationship with her mother, I also place a particular weight on C’s present wish to live with M in Hong Kong.  The above considerations are in favour of having C continuing to live with her mother in Hong Kong.  Having carefully considered all of the relevant factors and having given due consideration to the 1^st and 2^nd SIR, I accept that on balance it would be in the best interests of C to continue living with her mother in Hong Kong.

Conclusion

111. It is ordered that F’s summons filed on 10 November 2014 be dismissed.

Access

112. Access for F if C would not be relocated with him was discussed during the course of cross-examination.  By and large, the proposals set out in the final version of the series of draft consent summonses handed up at the CDR and exhibited as P1 were acceptable to him.  The parties have been historically flexible as to access. I believe they will be cooperative in ensuring that there is reasonable access. The parties are directed to endeavour to reach an agreement on a detailed access plan within 21 days hereof, failing which they shall immediately make a joint report in writing to the Court, in which case the Court will fix a hearing date for access as soon as possible.  If the parties are able to reach an agreement, F shall procure a consent summons containing the terms of the agreement and file the same for the Court’s consideration and approval within 21 days hereof. 

Costs

113. As this is a child related matter, it is ordered nisi that there shall be no order as to costs, including all reserved costs.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the Court for varying the order.

114. I am most grateful for the considerable assistance offered by Counsel to the court.